NC 206.11 FIRST DEGREE MURDER WHERE NO DEADLY WEAPON IS USED, COVERING ALL LESSER INCLUDED HOMICIDE OFFENSES AND SELF-DEFENSE. FELONY.

North Carolina Pattern Jury Instructions (N.C.P.I.)—Criminal 206.11

NC 206.11 FIRST DEGREE MURDER WHERE NO DEADLY WEAPON IS USED, COVERING ALL LESSER INCLUDED HOMICIDE OFFENSES AND SELF-DEFENSE. FELONY.

General Criminal Volume. Replacement June 2012. G.S. 14-17, 14-18, 14-51.2, 14-51.3, 14-51.4

NOTE WELL: If self-defense is at issue and the assault occurred in defendant’s home, place of residence, workplace or motor vehicle, see N.C.P.I. Crim. 308.80, Defense of Habitation.

NOTE WELL: G.S. 15-176.4; 15A-2000(a): When the defendant is indicted for first degree murder the court shall, upon request by either party, instruct the jury as follows:

“In the event that the defendant is convicted of murder in the first degree, the court will conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment (without parole). If that time comes, you will receive separate sentencing instructions. However, at this time your only concern is to determine whether the defendant is guilty of the crime charged or any lesser included offenses about which you are instructed.”

The defendant has been charged with first degree murder.

Under the law and the evidence in this case, it is your duty to return one of the following verdicts:

1) guilty of first degree murder, or

2) guilty of second degree murder, or

3) guilty of voluntary manslaughter, or

4) guilty of involuntary manslaughter, or

5) not guilty.

First degree murder is the unlawful killing of a human being with malice and with premeditation and deliberation.

Second degree murder is the unlawful killing of a human being with malice, but without premeditation and deliberation.

Voluntary manslaughter is the unlawful killing of a human being without malice and without premeditation and deliberation.

Involuntary manslaughter is the unintentional killing of a human being by an unlawful act not amounting to a felony or by an act done in a criminally negligent way.

The defendant would be excused of first degree murder and second degree murder on the ground of self-defense if:

First, the defendant believed it to be necessary to kill the victim in order to save the defendant from death or great bodily harm.

And Second, the circumstances as they appeared to the defendant at the time were sufficient to create such a belief in the mind of a person of ordinary firmness. It is for you, the jury, to determine the reasonableness of the defendant’s belief from the circumstances as they appeared to the defendant at the time. In determining the reasonableness of the defendant’s belief, you should consider the circumstances as you find them to have existed from the evidence, including (the size, age and strength of the defendant as compared to the victim), (the fierceness of the assault, if any, upon the defendant), (whether or not the victim had a weapon in the victim’s possession), (and the reputation, if any, of the victim for danger and violence) (describe other circumstances, as appropriate from the evidence).

The defendant would not be guilty of any murder or manslaughter if the defendant acted in self-defense, and if the defendant (was not the aggressor in provoking the fight and) did not use excessive force under the circumstances.

(One enters a fight voluntarily if one uses toward one’s opponent abusive language, which, considering all of the circumstances, is calculated and intended to provoke a fight. If the defendant voluntarily and without provocation entered the fight, the defendant would be considered the aggressor unless the defendant thereafter attempted to abandon the fight and gave notice to the deceased that the defendant was doing so. In other words, a person who uses defensive force is justified if the person withdraws, in good faith, from physical contact with the person who was provoked, and indicates clearly that [he] [she] desires to withdraw and terminate the use of force, but the person who was provoked continues or resumes the use of force. A person is also justified in using defensive force when the force used by the person who was provoked is so serious that the person using defensive force reasonably believes that [he] [she] was in imminent danger of death or serious bodily harm, the person using defensive force had no reasonable means to retreat, and the use of force likely to cause death or serious bodily harm was the only way to escape the danger. The defendant is not entitled to the benefit of self-defense if the defendant was the aggressor with the intent to kill or inflict serious bodily harm upon the deceased.)

NOTE WELL: Instructions on aggressors and provocation should only be used if there is some evidence presented that defendant provoked the confrontation. See G.S. 14-51.4(2). If no such evidence is presented, the preceding parenthetical and reference to the aggressor throughout this instruction would not be given. In addition, the remainder of the instruction, including the mandate, would need to be edited accordingly to remove references to the aggressor.

A defendant does not have the right to use excessive force. A defendant uses excessive force if the defendant uses more force than reasonably appeared to the defendant to be necessary at the time of the killing. It is for you the jury to determine the reasonableness of the force used by the defendant under all of the circumstances as they appeared to the defendant at the time.

Furthermore, the defendant has no duty to retreat in a place where the defendant has a lawful right to be. (The defendant would have a lawful right to be in the defendant’s [home] [own premises] [place of residence] [workplace] [motor vehicle].)

NOTE WELL: The preceding parenthetical should only be given where the place involved was the defendant’s [home] [own premises] [place of residence] [workplace] [motor vehicle].

Therefore, in order for you to find the defendant guilty of first degree murder or second degree murder, the State must prove beyond a reasonable doubt, among other things, that the defendant did not act in self-defense, or, failing in this, that the defendant was the aggressor with the intent to kill or inflict serious bodily harm upon the deceased. If the State fails to prove either that the defendant did not act in self-defense or was the aggressor, with intent to kill or inflict serious bodily harm, you may not convict the defendant of either first or second degree murder. However, you may convict the defendant of voluntary manslaughter if the State proves that the defendant was the aggressor without murderous intent in provoking the fight in which the deceased was killed, or that the defendant used excessive force.

For you to find the defendant guilty of first degree murder, the State must prove six things beyond a reasonable doubt:

First, that the defendant intentionally and with malice killed the victim.

Malice means not only hatred, ill will, or spite, as it is ordinarily understood, but it also means the condition of mind which prompts a person to take the life of another intentionally or to intentionally inflict serious injury upon another that proximately results in another person’s death without just cause, excuse or justification, (or to wantonly act in such a manner as to manifest depravity of mind, a heart devoid of a sense of social duty, and a callous disregard for human life.)

Second, the state must prove that the defendant’s act was a proximate cause of the victim’s death. A proximate cause is a real cause, a cause without which the victim’s death would not have occurred.

Third, that the defendant intended to kill the victim. Intent is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred. An intent to kill may be inferred from the nature of the defendant’s act, the manner in which the assault was made, the conduct of the parties and any other relevant circumstances.

Fourth, that the defendant acted with premeditation, that is, that the defendant formed the intent to kill the victim over some period of time, however short, before the defendant acted.

Fifth, that the defendant acted with deliberation, which means that the defendant acted while the defendant was in a cool state of mind. This does not mean that there had to be a total absence of passion or emotion. If the intent to kill was formed with a fixed purpose, not under the influence of some suddenly aroused violent passion, it is immaterial that the defendant was in a state of passion or excited when the intent was carried into effect.

Neither premeditation nor deliberation is usually susceptible of direct proof. They may be proven by proof of circumstances from which they may be inferred, such as the [lack of provocation by the victim] [conduct of the defendant before, during and after the killing] [threats and declarations of the defendant] [use of grossly excessive force] [infliction of lethal wounds after the victim is felled] [brutal or vicious circumstances of the killing] [manner in which or the means by which the killing was done] [ill will between the parties].

And Sixth, that the defendant did not act in self-defense or that the defendant was the aggressor in provoking the fight with the intent to kill or inflict serious bodily harm upon the deceased.

Second Degree Murder differs from first degree murder in that neither specific intent to kill, premeditation, nor deliberation is a necessary element. For you to find the defendant guilty of second degree murder, the State must prove beyond a reasonable doubt that the defendant unlawfully, intentionally and with malice, wounded the victim, thereby proximately causing the victim’s death and that the defendant did not act in self-defense, or if the defendant did act in self-defense, that the defendant was the aggressor with intent to kill or inflict serious bodily harm in bringing on the fight.

Voluntary Manslaughter is the unlawful killing of a human being without malice and without premeditation and without deliberation. A killing is not committed with malice if the defendant acts in the heat of passion upon adequate provocation.

The heat of passion does not mean mere anger. It means that at the time defendant acted, the defendant’s state of mind was so violent as to overcome the defendant’s reason, so much so that the defendant could not think to the extent necessary to form a deliberate purpose and control the defendant’s actions. Adequate provocation may consist of anything which has a natural tendency to produce such passion in a person of average mind and disposition, and the defendant’s act took place so soon after the provocation that the passion of a person of average mind and disposition would not have cooled.

The burden is on the State to prove beyond a reasonable doubt that the defendant did not act in the heat of passion upon adequate provocation, but rather that the defendant acted with malice. If the State fails to meet this burden, the defendant can be guilty of no more than voluntary manslaughter.

Voluntary manslaughter is also committed if the defendant kills in self- defense but uses excessive force under the circumstances or was the aggressor without murderous intent in bringing on the fight in which the killing took place.

The burden is on the State to prove beyond a reasonable doubt that the defendant did not act in self-defense. However, if the State proves beyond a reasonable doubt that the defendant, though otherwise acting in self-defense, [used excessive force] (or) [was the aggressor, though the defendant had no murderous intent when the defendant entered the fight], the defendant would be guilty of voluntary manslaughter.16

For you to find the defendant guilty of voluntary manslaughter, the State must prove three things beyond a reasonable doubt:

First, that the defendant killed the victim by an intentional and unlawful act.

Second, that the defendant’s act was a proximate cause of the victim’s death. A proximate cause is a real cause, a cause without which the victim’s death would not have occurred.

And Third, that the defendant [did not act in self-defense] or [though acting in self-defense was the aggressor] (or) [though acting in self-defense used excessive force].

If you do not find the defendant guilty of murder or voluntary manslaughter, you must consider whether the defendant is guilty of involuntary manslaughter. Involuntary manslaughter is the unintentional killing of a human being by an unlawful act not amounting to a felony, or by an act done in a criminally negligent way.

For you to find the defendant guilty of involuntary manslaughter, the State must prove two things beyond a reasonable doubt:

First, that the defendant acted

a) [unlawfully] [The defendant’s act was unlawful if (define crime alleged to have been violated, e.g., simple assault.)]

(or)

b) [in a criminally negligent way]. [Criminal negligence is more than mere carelessness. The defendant’s act was criminally negligent, if, judging by reasonable foresight, it was done with such gross recklessness or carelessness as to amount to a heedless indifference to the safety and rights of others.]

And Second, the State must prove that this [unlawful] (or) [criminally negligent] act proximately caused the victim’s death.

(If the victim died by accident or misadventure, that is, without wrongful purpose or criminal negligence on the part of the defendant, the defendant would not be guilty. The burden of proving accident is not on the defendant. The defendant’s assertion of accident is merely a denial that the defendant has committed any crime. The burden remains on the State to prove the defendant’s guilt beyond a reasonable doubt.)

Final Mandate on All Charges and Defenses

If you find from the evidence beyond a reasonable doubt that on or about the alleged date, the defendant, acting with malice and not in self- defense, killed the victim thereby proximately causing the victim’s death, that the defendant intended to kill the victim, and that the defendant acted after premeditation and with deliberation, it would be your duty to return a verdict of guilty of first degree murder. If you do not so find or have a reasonable doubt as to one or more of these things, you will not return a verdict of guilty of first degree murder, but will determine whether the defendant is guilty of second degree murder.

If you find from the evidence beyond a reasonable doubt that on or about the alleged date, the defendant intentionally and with malice but not in self-defense wounded the victim, thereby proximately causing the victim’s death, it would be your duty to return a verdict of guilty of second degree murder. If you do not so find or have a reasonable doubt as to one or more of these things, you will not return a verdict of guilty of second degree murder. If you do not find the defendant guilty of second degree murder, you must consider whether the defendant is guilty of voluntary manslaughter.

If you find from the evidence beyond a reasonable doubt that on or about the alleged date, the defendant intentionally wounded the victim, and thereby proximately caused the victim’s death, and that the defendant was the aggressor in bringing on the fight or used excessive force, it would be your duty to return a verdict of guilty of voluntary manslaughter even if the State has failed to prove that the defendant did not act in self-defense.

Or, if you find from the evidence beyond a reasonable doubt that on or about the alleged date, the defendant intentionally and not in self-defense wounded the victim and thereby proximately caused the victim’s death, but the State has failed to satisfy you beyond a reasonable doubt that defendant did not act in the heat of passion upon adequate provocation, it would be your duty to return a verdict of guilty of voluntary manslaughter.

If you do not so find or have a reasonable doubt as to one or more of these things, you will not return a verdict of guilty of voluntary manslaughter. You must then determine whether the defendant is guilty of involuntary manslaughter .

If you find from the evidence beyond a reasonable doubt that on or about the alleged date, the defendant [committed (name crime)] [acted in a criminally negligent way] thereby proximately causing the victim’s death, it would be your duty to return a verdict of guilty of involuntary manslaughter. However, if you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.

And finally, if the State has failed to satisfy you beyond a reasonable doubt that the defendant did not act in self-defense, that the defendant was the aggressor, or that the defendant used excessive force, then the defendant’s action would be justified by self-defense; and it would be your duty to return a verdict of not guilty.